Arizona has joined a growing number of states that are considering laws that would allow them to "nullify" federal law or action. The bills, fueled by far right-wing politicos, are constitutionally suspect, as attorney Katherine Jack notes in this ACSblog guest post.

In every legislative session in every state throughout the land there are proposals like this, usually made by a few fringe members who know their proposal has no chance but file it anyway to serve some personal or political agenda.

In this instance, legislators here -- who claim to be strict constitutionalists -- seem fairly willing to ignore what is commonly called the "supremacy clause" of the U.S. Constitution (as well as the Fourteenth Amendment), and which more or less say that federal law supersedes state law.

A state or a person can challenge such laws in court. But a state can't on its own simply declare a federal law to be unconstitutional.

The "wacky" measure, however, is being pushed by the state Senate President Russell Pearce, "the most powerful person in state government," Montini notes. That makes the matter, he writes, "much less of a laughing matter."

In Indiana, one of the states with a nullification bill pending, Senate Bill 505 purports to addresses the applicability of federal law in Indiana and "the inapplicability of certain federal law in Indiana." S.B. 505 directs that "A statute of the United States found inconsistent with the Constitution of the United States ... is not law in Indiana." After quoting that Ninth and Tenth Amendments of the U.S. Constitution, the bill then makes findings that the federal Patient Protection and Affordable Care Act is unconstitutional and that therefore, the law "is void in Indiana." The bill also creates a private right of action. While countless bills languish in state legislatures every year, S.B. 505 appears to be gaining traction and already has six state senators listed as co-authors. In Indiana, following a historic democratic win for Obama in 2008, republicans gained strong majorities in the state house and senate in the 2010 elections. Many of the new members espouse tea party values, including asserting that health care reform is unconstitutional. Republican Governor Mitch Daniels, mentioned as a presidential candidate, has not weighed in.

Bills like Indiana's S.B. 505 are clearly an outlet for Republicans in state capitols to have a voice on the constitutionality of health care reform. As illuminated by a recent ACS Issue Brief and others, health care reform is on solid constitutional ground, and federal courts are currently addressing the question. But these nullification bills, being considered in other states, including Idaho, Maine, Montana, Nebraska, Oregon, Texas and Wyoming, raise additional, even more fundamental constitutional questions by presuming that state legislature have the power to do so. The claim that a state legislature could render a federal law unenforceable within the state raises questions of federalism not debated since perhaps the Civil War.

The Framers seemed to have an answer. By looking at Article VI, Section 2 of the Constitution, statehouse legislators will note that federal law is "the supreme Law of the Land[.]"